The fate of Terry Nichols will soon be in the hands of the jury. The conventional wisdom, before the trial began on Sept. 29, was that the case against Nichols was weaker than the one against convicted Oklahoma City bomber Timothy McVeigh. After 98 prosecution witnesses and 92 defense witnesses, will the jury see it that way?
Salon spoke with Scott Robinson, a Denver defense attorney who has been writing a column about the trial for the Rocky Mountain News.
How strong was the prosecution case against Nichols?
It was a potpourri of evidence, which I think the prosecution presented with mixed success. Some of the elements were proved pretty definitively and are very important to the prosecution's case. Some of the elements were not even close to being proven beyond reasonable doubt.
What were the key elements of the prosecution case?
There were basically six major prosecution contentions connecting Nichols to the bombing. One was the break-in at a quarry in Marion, Kan., from which Tovex explosive, blasting caps and detonating cord were taken. Second was the robbery of gun collector Roger Moore in Arkansas. The third was the purchase of two tons of ammonium nitrate fertilizer from a farm co-op in McPherson, Kan. A fourth would be Nichols driving McVeigh from Oklahoma City to Junction City on Easter Sunday. Fifth, that Nichols helped build the bomb at Geary Lake (State Park). And finally, that he did a bunch of other stuff including making phone calls to get plastic barrels for the explosives.
What was the weakest?
The Geary Lake evidence. I don't think the prosecution came close to convincing the jury that Nichols personally helped McVeigh mix the bomb on the morning of April 18, the day before the bombing. For good reason. There wasn't enough time. There was too much to do. There were too many other sightings of Ryder trucks, it just wasn't compelling evidence.
Why is that so important?
Because if Nichols can't be shown to have been involved in mixing the bomb, the other incriminating activities of Nichols could be explained away as being done unknowingly or without recognizing the probable intent of McVeigh.
But in federal conspiracy cases, the defendant need not know the intent of the conspiracy to be liable.
You can't mix a bomb innocently. But you can place telephone calls innocently to plastic barrel manufacturers or to racing fuel people. You could even buy a ton of ammonium nitrate fertilizer. You can explain that away innocently. You can explain the use of aliases to a certain extent. That's why April 18th was so important, and that's where the prosecution came up a little short. That doesn't mean they won't get a conviction, but it's also important because if there is a conviction, lack of personal involvement in making the bomb will be a major statutory and case-law factor in whether the death penalty can be imposed.
Under the applicable federal law, if the jury finds Nichols guilty, they then consider a number of statutory aggravating and mitigating factors. Mitigating factors include that the individual played a relatively minor role in the whole crime, and that others who were equally or more culpable do not face the death penalty. So if someone else other than Nichols mixed the bomb with McVeigh and those people have never even been arrested, that's a statutory mitigator. There's also case law from the Supreme Court indicating that, while having deliberate indifference to the value of human life is enough of an intent requirement, you cannot impose the death penalty if the individual's participation in the overall crime is relatively minor compared to others.
So jurors would have to believe Nichols was McVeigh's right-hand man?
The key thing is that he be shown to be something other than a minor participant. The longer that Nichols is actively and knowingly involved in the conspiracy, the more chance of that. So if he can cut off his involvement with McVeigh on the morning of the 18th when he loaned him a truck, or perhaps on the 16th when he drove him from Oklahoma City to Junction City, well, that would help Nichols at sentencing.
What were the strongest elements of the prosecution's case?
They came down to a couple of pieces of paper and too many storage
lockers. A receipt with McVeigh's fingerprint was found in
Nichols' home in a place, quite frankly, where McVeigh couldn't have put it. That was driven home when Nichols' wife, Marife, helpfully told the prosecution
that McVeigh had never even been in their Herington [Kan.] home, eliminating the "McVeigh framed him" defense. Nichols also had enough aliases to make up a whole baseball team. Ten aliases, and that's about 10 too many. It isn't just that they were
phony names. The Mike Havens alias was used to purchase ammonium nitrate
in large quantities.
There's also storage lockers that were rented at very inopportune times.
Marife Nichols leaves for the Philippines on Sept. 22, 1994, and on that
same day McVeigh, posing as Sean Rivers, rents a storage locker in
Herington. Eight days later is the first purchase of a ton of ammonium
nitrate. This is followed by the quarry break-in, followed by
Nichols using a pseudonym at a storage facility in Council
Grove. The next day another ton of fertilizer is purchased. Then there's
the so-called robbery of gun dealer Roger Moore, followed two days later by
another Council Grove rental by Nichols, under yet another
assumed name. Motel records show Nichols used names similar to Mike Havens
pseudonyms all the time.
You put all that together and you've got a real
tough situation for the defense, even though when all these storage lockers
or sheds were originally searched there was no sign of explosives residue.
What about the defense?
It put on a very good showing attacking many aspects of the
prosecution's case. But why didn't they attack other aspects? Probably because they didn't have a way to do it. No one's ever explained, for example, how the ammonium nitrate receipt is in Nichols' home. Why is the quilt owned by the
girlfriend of Roger Moore (the Arkansas gun enthusiast whom star
prosecution witness Michael Fortier has said Nichols burgled to raise
money for the bombing) in Nichols' home? The hardest thing to explain is why Nichols has Roger Moore's Florida safe deposit box key and his quilt.
Although the people accusing Nichols of the robbery
ain't too believable either. And anyway, it's not even necessarily connected,
because unlike the theft of explosives, there's another possible motivation
for Nichols to commit this crime without having been involved in the
bombing -- and that's greed.
How damaging was the testimony of Marife Nichols to the defense?
It was quite damaging, for what she said and for what she didn't say. She tied down that McVeigh was never in their Herington home, she established that Nichols left quickly after getting a call from McVeigh on Easter Sunday, and she provided no
alibi for him on April 18, the day of the Geary Lake scenario. She provided no explanation for all the aliases.
Couldn't the defense have foreseen this?
Sure. But somebody had to testify
as to Nichols breaking off of his
relationship with McVeigh. Someone had to testify that he
packaged ammonium nitrate and sold it at gun shows for enormous profit, and not necessarily to bomb people. Somebody had to show the jury that this was a married man who had children and people out there who cared about him. Unfortunately, sometimes we have to make bad choices as lawyers. Using Marife Nichols to act as Terry
Nichols' surrogate was one of them.
What other bad choices did the lawyers make?
Well, there was bad personnel choice. Several of the prosecutors were
seemingly cowed by Michael Tigar (the lead defense attorney) and the
judge's seeming lack of warmth for them. There were some witnesses who
probably would have come off a lot better if other prosecutors had handled
them. There were bad luck decisions for the defense. They could not present
their case in chronological order because of witness problems. But that's
about it. This is not a case in which major blunders were made. In fact,
part of the reason that so many people said that calling Marife was a
mistake was that to that point it appeared that nobody had done anything
terribly wrong. There was no Chris Darden getting O.J. Simpson to try on the
How do you think it looks for Terry Nichols?
He's going to get convicted of conspiracy because of the ammonium nitrate
receipt and the lack of alibis and all that. The real question is, are
they going to get him on any substantive counts, and that comes down to
whether the jury can understand the concept of complicity -- that is, aiding
and abetting a criminal act. For example, buying ammonium nitrate could be
aiding and abetting as long as you knew what the ultimate objective was.
But that's a little more complex, because the indictment talks about
constructing a bomb of mass destruction and detonating it. And there is no
evidence that works that Nichols mixed the bomb.
He'll possibly be found guilty on the substantive
counts. The odds are stacked against Nichols because of the number of deaths and because of
the victim impact testimony. Still, he's got a much better chance than McVeigh of avoiding lethal injection.
Do you think he'll avoid it?
This is a man with
two kids, a wife, who is portrayed, whether it's true or not, as
someone who was basically pressured, cajoled, pushed, threatened by Tim
McVeigh to go along with this bizarre and disgusting plan. You can so
easily depict him as a sheepish follower that he has a decent chance of
avoiding the death penalty.
The problem is that 168 is an awful lot of deaths.